Overhaul for foreign interference laws in bipartisan deal

A bipartisan deal has cleared the way for dozens of changes to a controversial new law that will crack down on foreign interference in Australian politics amid warnings of unprecedented espionage that damages the national interest.

The outcome follows fiery criticism of the reform from Chinese officials as well as domestic political scandals over links to foreign governments, heightening concerns at the potential to influence future elections.

The Turnbull government is set to accept 60 changes recommended by Parliament’s peak security committee to ensure support from Labor in the Senate.

Attorney-General Christian Porter has warned of an unprecedented level of foreign interference in Australia's political system.Credit:Dominic Lorrimer

One of the biggest changes is a cut in the maximum jail terms from 10 to seven years for some of those found guilty of covert work for foreign powers.

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Another change will expand the protections for media employees who breach secrecy provisions, sparing them from prosecution if they can show a reasonable belief their work was in the public interest.

The report will also ensure a review of the secrecy offences, the area where groups including the Law Council of Australia and media companies had warned that the drafting of the bill had been too rushed.

The Parliamentary joint committee on intelligence and security, chaired by Liberal MP Andrew Hastie with Labor MP Anthony Byrne as deputy chair, released the report on Thursday afternoon.

The compromise ends months of negotiation between the Turnbull government and Labor, making it increasingly likely the Espionage and Foreign Interference Bill will be passed by Parliament by June 21.

Attorney-General Christian Porter told Fairfax Media the tougher measures were needed before voters go to five byelections in four states on July 28, given the rise in foreign interference.

Mr Porter denied the laws were aimed at China and said the combined impact of the government’s reforms could prevent the sort of election interference seen in the US two years ago and blamed on Russia.

“There’s an unprecedented level of foreign intelligence activity in Australia and that means more foreign agents and more foreign powers using more tradecraft and more technologies to engage in espionage and foreign interference and the attempted foreign influence of our democratic processes,” Mr Porter said.

“And that increase in volume is detectable even in the period of time that this piece of legislation has been under consideration by the committee.”

While the bipartisan agreement was reached in principle and reported by Fairfax Media late last week, the outcome depended on talks over recent days between Mr Porter and Mr Hastie and the Labor side including Mr Byrne and Labor legal affairs spokesman Mark Dreyfus.

Mr Porter said the result meant the laws should be in place by the July 28 byelections, when about 500,000 voters will cast their ballots.

“We’ve always considered that you want to have those laws in place to protect processes from foreign interference and foreign influence before major democratic process,” he said.

“In a way that was somewhat unanticipated at the beginning of this process, we are now staring down five byelections which will be very critical to Australia’s democratic complexion. And it struck us that given the changes to the threat environment over the last six months and given that we are looking at five byelections in the very near future, it was utterly critical that the EFI Bill was passed.”

The debate over the new laws began late last year when Prime Minister Malcolm Turnbull declared that foreign powers were trying to influence Australian affairs, prompting Chinese foreign ministry spokesman Geng Shuang to hit back with a warning.

“These groundless and unfounded remarks can sabotage China-Australia relations and are detrimental to the foundation of mutual trust and cooperation,” Mr Shuang said.

Mr Porter rejected claims the reforms were aimed at China.

“This bill is not about any single country other than Australia – the bill is about making us, as an Australian free and open democratic society, resilient and protected from any attempts to influence or interfere with our democratic outcomes,” he said in an interview.

“The only country this is about is Australia.”

Asked if the new laws would spare Australia from the election interference seen in the US and blamed on Russia, Mr Porter said it could do so if the EFI Bill was passed in concert with the Foreign Influence Transparency Scheme Bill.

“The two bills have been designed as a full court press, so together they are meant to cover the field of behaviours that are designed to interfered with and covertly influence our political and democratic system,” he said.

“If one bill is passed without the other partner bill, then you don’t cover the full court of behaviours that are trying to prevent, and influence and interference will move to the area that is least protected.

“So this EFI Bill being passed is a major if not colossal step forward in protecting our national security and our democratic system, but it must also be accompanied by the FITS Bill.”

Of the 60 recommendations, only 20 are considered substantial and six of those were revealed when the government introduced draft amendments in March to address claims of poor drafting with the original bill.

The government appears likely to accept all 60 of the recommendations before the bill goes to debate in the parliament in the week beginning on June 18, with Mr Porter hoping to have it through the Senate on the Thursday of that week.

The jail terms for many of the offences will be reduced from 10 to 7 years, but this does not go as far as meeting some demands for a cut to the penalties across all offences.

As well, the government rejected the idea of inserting a “good faith” defence for the espionage offences, arguing that this would undermine the overall intent of the bill.

The government acknowledged in March that it had gone too far with its original bill in punishing journalists who revealed secret information.

The March amendments removed any requirement for journalists to demonstrate that their reporting was ‘fair and accurate’ and it added a defence so that journalists would be spared if they could show they reasonably believed their conduct was in the public interest.

Negotiations in recent days centred on whether that defence should not only apply to a journalist but to his or her editors and to any administrative staff involved.

The new report sets out changes so that support staff are covered by the journalist’s “reasonable belief” but it will not cover editors, who will have to demonstrate their own “reasonable belief” that their conduct was in the public interest.

As well, the head of the agency responsible for any documents obtained by journalists will have to certify that the material was secret, and the Attorney-General will have to consent to any prosecution.

This stops short of the recommendation from media companies in recent months, urging parliament to withdraw the bill for a complete rewrite.

Mr Dreyfus said the amendments made the bill more effective and ensured the law would achieve its intention of disrupting covert attempts to undermine Australia’s democratic system.

“At the same time, the amendments provide important protections for journalists, non-government organisations and charities,” he said.

“The amendments also introduce new legislative safeguards which are appropriate when criminal laws are being extended.”

While the government had expressed frustration at the time taken to finalise the agreement in the months since it outlined its amendments in March, Mr Dreyfus emphasised the need to check the details.

“There is nothing more important than getting the details of national security legislation right,” he said.